Deepak Malhotra vs Deepti Malhotra & Ors. on 24 May, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 18.05.2017
Delivered on: 24.05.2017

+ CRL.REV.P.363/2016 Crl.M.A.8005/2016

DEEPAK MALHOTRA ….. Petitioner

versus

DEEPTI MALHOTRA ORS. ….. Respondents

Advocates who appeared in this case:
For the Petitioner : Ms. Neena Malhotra, Adv.
For the Respondent: Mr. Pardeep Kumar with Mr. Ramesh Gupta along
with respondent No.1 in person

CORAM:-
HON’BLE MR JUSTICE ASHUTOSH KUMAR

JUDGMENT

ASHUTOSH KUMAR, J

1. The present revision petition has been preferred by the petitioner
against the order dated 06.04.2016 passed in M.T No.110/2015 by the
Judge, Family Court (North), Rohini, Delhi whereby the petitioner has
been directed to pay to the respondent, as an interim maintenance of an
amount of Rs.22,000/- per month from the date of the filing of the
application under Section 125 Cr.P.C i.e. from 23.07.2014 till the
disposal of the petition. The petitioner has been directed to deposit the
aforesaid amount directly in the bank account of the petitioner by 10th day
of every calendar month. The arrears of the maintenance have also been

CRL.REV.P.363/2016 Page 1 of 8
directed to be cleared within six months from the date of passing of the
order impugned.

2. It has been submitted on behalf of the petitioner that he was
married to respondent No.1 on 11.10.2000 and two children were born
out of the wedlock. For about 13 years, the spouses lived happily when
suddenly, on 08.04.2013, respondent No.1 left the matrimonial house
along with the two children and all valuables in a car which was actually
gifted by the petitioner to the respondent.

3. Thereafter, it has been submitted, a petition under Section 12 of the
Domestic Violence Act was filed by the respondent No.1 against the
petitioner which is pending adjudication. Apart from this, a case also was
lodged by respondent No.1 against the petitioner and others vide FIR
No.290/2013 (P.S.Mukherjee Nagar) for the offences under Sections
498A
and 406 of the IPC. The petitioner, on the other hand, had
approached the Court under Section 9 of the Hindu Marriage Act for
restitution of conjugal rights vide HMA No.1041/2013. In the aforesaid
petition, the joint statement of the petitioner and the respondent No.1 was
recorded indicating that they have resolved their matrimonial disputes
amicably and have decided to forget the past and forgive each other. It
was also stated that a decision was taken by them to stay together in the
matrimonial home with effect from 05.10.2013. Thereafter, the petitioner
was granted anticipatory bail and the application filed by the respondent
No.1 for cancellation of bail was rejected.

4. It was then, the petitioner states, a petition under Section 125
Cr.P.C was preferred by respondent No.1 on 25.01.2016 in which the
present impugned order has been passed by way of interim maintenance

CRL.REV.P.363/2016 Page 2 of 8
to the respondent No.1.

5. The learned counsel for the petitioner seeks to assail the order on
the ground that evidence tendered by the parties was not duly appreciated
and the Court below did not appreciate that only the property of the
petitioner was to be taken into account for directing him to pay the
maintenance and not the property of his father. It is further submitted that
according to the law, if no definite evidence with regard to the income of
the husband is offered then the Court has to form its opinion as to what
could possibly be the income of the husband. The guess work made by
the Court below, it has been argued, is without any basis and is based on
wrong assumptions.

READ  Sahebrao Anandrao Pohare And Ors.-vs-State Of Maharashtra Through on 12 April, 2007

6. It has been specifically pointed out that while passing the order
dated 06.04.2016, even though the Trial Judge took into account that
M/s.Malhotra Electronics was in the name of the father of the petitioner
and that the ITRs were of the firm owned by the father of the petitioner, it
awarded maintenance to respondent No.1 on the basis of those
documents.

7. Despite the fact that the petitioner had annexed the rent agreements
dated 29.10.2013 and 07.07.2015 (marked as Mark B), the Court below
did not take into account that the petitioner had to pay some amount
towards monthly rental of his accommodation.

8. The assumption of the Court that the people do not show their real
income and for the purposes of taxation, show lesser income, is not based
on any sound logic or perception and such perception cannot be pressed
into use while deciding any application judicially. It has also been
submitted that the respondent No.1 had voluntarily deserted matrimonial

CRL.REV.P.363/2016 Page 3 of 8
home and despite having agreed for living under the same roof, has been
consistently trying to avoid to come back to the matrimonial fold.

9. The aforesaid contentions of the petitioner were stoutly challenged
by the learned lawyer appearing for the respondent No.1 who submitted
that the respondent No.1 was ever ready to join her husband but the
petitioner has been unwilling to restore the matrimonial life. It has further
been submitted that the respondent No.1 is barely educated and does not
have any movable or immovable property in her name. The allegations of
the petitioner that the respondent No.1 is running a boutique and also has
been carrying out the work of manufacturing boxes etc, fetching her good
income has been denied. It has been submitted that such vague and bald
statement cannot ever be accepted. On the other hand what was asserted
by the respondent No.1 is that the petitioner has been running a shop of
electronics items in Lajpat Rai market under the name and style of
Malhotra Electronics which fetched him an income of Rs.2 lakhs per
month. It has been stated that the petitioner also owns a factory and gets
rent of an amount of Rs.32,000/- per month for the second floor of the
property bearing No.1198 at Dr.Mukherjee Nagar.

10. From the perusal of the order impugned it appears that the Court
below did not take into account the rent agreement and rent receipts
which were filed by the petitioner. The Court below, did not take the
above into account only because in the statement of expenditure, there
was no statement regarding payment of monthly rent. The aforesaid
ground may not be tenable as the petitioner may have missed to state that.
Two receipts of the monthly rental of Rs.1200/- ought to have been taken
into account for collecting the expenditure of the petitioner.

CRL.REV.P.363/2016 Page 4 of 8

11. The observation of the Family Court about the petitioner being the
only son of his parents who could not be expected to have been thrown
away is also not based on correct logic. However, the Court below was
absolutely justified in holding that even though the firm namely Malhotra
Electronics stands in the name of his father, Mr.Sunder Lal Malhotra but
according to the admission of the petitioner that on account of age of his
father, he had been running the business. The income tax return of not
only the firm but of the petitioner in his individual capacity has also been
produced and the petitioner is shown to be working at the shop as an
employee. The Court below has taken into account the income affidavit
of the petitioner and other attending circumstances and has assumed the
income of the petitioner to be Rs.40,000/- per month. While doing so, the
Court below took into account the fact that while the two children were
staying with the respondent No.1, school fee was being paid by the
petitioner.

READ  Hansaben Bhanubhai (Khant) ... vs State Of Gujarat on 6 March, 2017

12. So far as the expenditure of the respondent No.1 is concerned, the
Court, by taking into account the cost incurred on the education of
children who are staying with respondent No.1 and their clothings, has
assessed it to be approximately Rs.22,000/- per month. As such the
petitioner has been directed to pay Rs.22,000/- per month by way of
interim maintenance.

13. While awarding maintenance under Section 125 Cr.P.C. or
maintenance pendentelite under Section 24 of the Hindu Marriage Act or
the maintenance under Section 18 of the Hindu Adoption or Maintenance
Act
, Courts are not only guided by the income of the husband in
determining the amount of monthly maintenance. It has been held that

CRL.REV.P.363/2016 Page 5 of 8
several factors including the status of the parties, liabilities, if any, of the
husband and number of persons to be maintained by the husband would
be some of the factors to be taken into consideration. In Alok Kumar Jain
v. Purnima Jain, 2007(96) DRJ 115, a co-ordinate Bench of this Court
while examining grant of maintenance, pendentelite, observed as under:

“10. Law under Section 24 of the Hindu Marriage Act is well
crystallized. From the judicial precedents, factors which can be
culled out as required to be kept in mind while awarding
interim maintenance are as under

(i) Status of the parties,

(ii) Reasonable wants of the claimant,

(iii) The income and property of the claimant,

(iv) Number of persons to be maintained by the husband,

(v) Liabilities, if any, of the husband,

(vi) The amount required by the wife to live a similar life
style as she enjoyed in the matrimonial home keeping in view
food, clothing, shelter, educational and medical needs of the
wife and the children, if any, residing with the wife and

(vii) Payment capacity of the husband.

11. Further, where it is noted that the respective spouses have
not come out with a truthful version of their income, some
guesswork has to be resorted to by the Court while forming an
opinion as to what could possibly be the income of the 2
spouses. This guesswork has to be based on the status of the
family, the place where they are residing and the past expenses
on the children, if any.”

14. In Dev Dutt Singh v. Smt. Rajni Gandhi, AIR 1984 Del 320, the
learned Single Judge of this Court(Avadh Behari Rohtagi, J.) observed
that there cannot be any mathematical formula for award of the
maintenance amount such as 1/3rd or any other proportion of the

CRL.REV.P.363/2016 Page 6 of 8
husband’s income. It was held that the law has to operate in a flexible and
elastic manner to do complete justice between the parties. The factors to
be taken into consideration were laid down in paras 12 to 15 of the
judgment, which are extracted hereunder:

READ  Ravindra Subhana Dadake, Jai-vs-State Of Maharashtra (At The on 13 August, 2008

“12. The substance of these judgments is this. Each case must
be determined according to its own circumstances. No two
cases arc alike. These cases do not lay down any proposition of
law. On the facts of the particular case the Court adjudicated
what allowance will be reasonable to award “having regard to
the petitioner’s own income and the income of the respondent”.
If the present case illustrates anything it is this that rigid
adherence to “one-third” rule may not always be just. Section
24
is not a code of rigid and inflexible rules, arbitrarily
ordained, and to be blindly obeyed. It leaves everything to the
Judge’s discretion. It does not enact any mathematical formulae
of one-third or any other proportion. It gives wide power,
flexible and elastic, to do justice in a given case.

13. In most cases the standard of living of one or both of the
parties will have to suffer because there will be two households
to support instead of one. When this occurs, the Court clearly
has to decide what the priorities are to be and where the
inevitable loss should fall. Generally speaking, wife is the
financially dependent spouse. She is potentially likely to suffer
greater financial loss from the dissolution of marriage than the
husband. For her support the Court has to award a reasonable
amount. The cases decided under the Act should not be
followed slavishly. In the words of Searman L.J. : “It would be
unfortunate if the very flexible and wide ranging powers
conferred upon the Court should be cut down or forced into this
or that line of decisions by the Courts.” (Chamberlain v.
Chamberlain, (1974) 1 All ER 33, 38 CA).

14. What is the right figure of periodical payment is essentially
a practical decision on the facts. The ultimate evaluation is left
to the adjudicator. On the statutory hypothesis it is an

CRL.REV.P.363/2016 Page 7 of 8
indefensible position to hold that the wife in the present case is
not entitled to anything because she is already earning
Rs.1,270/- per month which comes to one-third of the husband’s
income.

15. What is a proper proportion of the husband’s income to be
given to the wife as maintenance pendente lite is a question to
be determined in the light of all the circumstances of a
particular case; the very flexible and wide-ranging powers
vested in the Court make it possible to do justice.”

15. Now, considering the aforesaid set of facts, the order dated
06.04.2016 is modified to the extent that the petitioner would be required
to pay monthly maintenance to the respondent No.1 for an amount of
Rs.20,000/- per month with effect from the date of the application which
is 23.07.2014 till the disposal of the petition. However, the conditions
imposed by the Family Court, requiring the petitioner to pay said amount
by the 10th day of every calendar month is sustained. The petitioner
would be required to clear off the arrears within six months in six
monthly installments.

16. The order dated 06.04.2016 is modified to the extent indicated
above.

17. As directed by the Family Court, the case would be listed for final
adjudication on 05.07.2017.

ASHUTOSH KUMAR, J
MAY 24, 2017
k

CRL.REV.P.363/2016 Page 8 of 8

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